Grant v. Target Corporation

Filing 113

ORDER granting in part Grant's 106 Motion for Bill of Costs and 109 Motion for Assessment of Costs. The Clerk is thus AUTHORIZED and DIRECTED to tax costs against Defendant in the total amount of $4,262.43. Signed by Chief Judge Lisa G. Wood on 5/23/2016. (ca)

N the Uniteb 'tate flitritt Court
for the boutbern Marta of 1eoria
abannab Mbtqton
CHARITY GRANT,
Plaintiff,
CV 414-132

V.

TARGET CORPORATION, a foreign
corporation,
Defendant.

ORDER

Following a jury trial in which the jury awarded damages to
Plaintiff Charity Grant ("Grant"), the case is now before the
Court on a disputed Bill of Costs. Upon due consideration,
Grant's Motion for Amended Bill of Costs (Dkt. No. 106) and
Motion for Assessment of Costs (Dkt. No. 109) is GRANTED in
part.
BACKGROUND

Grant brought suit against Defendant Target Corporation
("Defendant") for injuries sustained when she slipped while
shopping in Defendant's Savannah store. The case proceeded to
trial the week of February 22, 2016. The jury awarded Grant
$60,000 on February 25, 2016, apportioning fault as follows: (1)

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51% against Defendant; and (2) 49% against Grant. Dkt. No. 101.
On March 3, 2016, the Court entered a Judgment in favor of
Grant. Dkt. No. 103.
Shortly thereafter, on March 24, 2016, Grant filed an
Amended Bill of Costs, requesting that Defendant pay certain
Fees as the non-prevailing party in the lawsuit, namely:
$300.00
$325.00
$2,740.21

$365.30
$1,108.30
$782.61

$241.51

Fees of the Clerk
Fees for service of summons
and subpoena
printed
or
for
Fees
recorded
electronically
necessarily
transcripts
obtained for use in the case
Fees and disbursements for
printing
Fees for witnesses
Fees for exemplification and
the costs of making copies of
the
where
materials
any
necessarily
copies
are
obtained for use in the case
and
costs
(Postage
Other
FEDEX)

Dkt. No. 106, p. 1. Grant attached a detailed, itemized
statement of all requested costs, which included numerous
invoices and receipts. Dkt. No. 106-1.' In total, Grant
requests that the Court award her $5,862.93 in costs.
Defendant promptly objected to Grant's Bill of Costs. Dkt.
Nos. 105, 107. Specifically, Defendant objects to two charged

The Court notes that Grant did not include an itemized statement of her
requested costs in her original Bill of Costs. Dkt. No. 104. The detailed,
itemized statement was only included after defense counsel argued that
Grant's Bill of Costs should be denied in its entirety, due to Grant's
failure to include such an itemization. See Dkt. No. 105.
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•

items: (1) Dr. Raphael Roybal's ("Dr. Roybal") expert witness
fee for $1,052.10, dkt. no. 107, p. 2; and (2) the inclusion of
costs "related to the lawsuit [Grant] filed and voluntarily
dismissed." Id. at p. 3. Defendant does not contest any of
Plaintiff's other requested costs. Id. In summary, Defendant
requests that the Court deny costs for the aforementioned,
disputed issues in the amount of $1,600.50, thereby reducing
Plaintiff's award to $4,262.43.
LEGAL STANDARD
Federal Rule of Civil Procedure 54(d) provides that a court
should award costs to a prevailing party "[u]nless a federal
statute, these rules, or a court order provides otherwise."
Fed. R. Civ. P. 54(d) (1). Rule (54) (d) of the Federal Rules of
Civil Procedure thus creates a presumption of an award of costs
to a prevailing party. Chapman v. Al Transp., 229 F.3d 1012,
1039 (11th Cir. 2000) (en banc)
28 U.S.C. § 1920 defines recoverable costs, allowing a
prevailing party to obtain:
(1) Fees of the clerk and marshal; (2) Fees
of the court reporter for all or any part of
the stenographic transcript necessarily
obtained for use in this case; (3) Fees and
disbursements for printing and witnesses;
(4) Fees for exemplification and copies of
papers necessarily obtained for use in the
case; (5) Docket fees under section 1923 of
this title; (6) Compensation of court
of
appointed
experts,
compensation
interpreters, and salaries, fees, expenses,

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and costs of special interpretation services
under section 1828 of this title.
A court is bound by the limitations set forth in § 1920 and,
accordingly, may not tax costs not listed in that section,
absent explicit statutory or contractual authorization to do so.
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445
(1987). The non-prevailing party bears the burden of
demonstrating that a challenged cost is not taxable.
Sensormatic Elecs. Corp v. Tag Co., No. 06-81105, 2009 WL
3208649, at *2 (S.D. Fla. Oct. 2, 2009) (citing E.E.O.C. v. W &
0, Inc., 213 F.3d 600, 621 (11th Cir. 2000)).
Although a court has discretion not to award full costs to
the prevailing party, this discretion "is not unfettered."
Chapman, 229 F.3d at 1039 (citing Head v. Medford, 62 F.3d 351,
354-55 (11th Cir. 1997)) . Because Rule 54 creates a presumption
in favor of awarding costs, "the denial of costs is in the
nature of a penalty for some defection on [the prevailing
party's] part in the course of litigation." Id. (alteration in
original) (quoting Walters v. Roadway Express, Inc., 557 F.2d
521, 526 (5th Cir. 1977)) . As such, to defeat this presumption
and deny full costs, a court "must have and state a sound basis
for doing so." Id. (citing Head, 62 F.3d at 354).

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DISCUSSION

Although Grant is entitled to recover costs pursuant to
Rule 54, the Court will not award costs in the requested amount
of $5,862.93. See Fed. R. Civ. P. 54(d) (1). As an initial
matter, the Court notes that Defendant only disputes $1,600.50
dollars of Grant's Bill of Costs. See generally Dkt. No. 107.
The remaining, undisputed costs appear both accurate and
reasonable, based on the itemization and invoices provided by
Grant's counsel. See Dkt. No. 106-1. Defendant, however,
specifically disputes, as costs, the inclusion of: (1) expert
witness fees; and (2) fees for a previously filed, voluntarilydismissed case. Dkt. No. 107, pp. 3-4.
As to the matter of the expert witness fee, the provisions
set forth in 28 U.S.C. § 1821 govern. Section 1821 (a) (1)
permits "a witness in attendance at any court of the United
States" to "be paid an attendance fee of $40 per day for each
day's attendance." 28 U.S.C. § 1821(b). 2 The Supreme Court, in
Crawford Fitting Co., 482 U.S. at 442, held that "a federal
court may tax expert witness fees in excess of the $[ 4 0] -per - day
limit set out in § 1821(b) only when the witness is courtappointed." See also Morrison v. Reichold Chems., Inc., 97 F.3d
460, 463 (11th Cir. 1996) (holding that "the district court
2

28 U.S.C. § 1821(b) also permits a wi:ness to "be paid the attendance fee
for the time necessarily occupied in going and returning from the place of
attendance at the beginning and end of such attendance or at any time during
such attendance."

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erred in taxing as costs any amount for expert witness fees in
excess of the $40 per day allowed under § 1821.")
Here, Dr. Roybal was not a court-appointed witness.
Rather, Dr. Roybal was retained by Grant to provide his expert
opinion as to the cause of her injuries. Given that Dr. Roybal
was not a court-appointed expert, an award of fees greater than
the $40 allowed by § 1821(b) would constitute error.
Accordingly, the Court reduces Grant's original request of
$1,052.10 to $52.10, a reduction of $1,000.00, which represents
the appropriate cost for Dr. Roybal's expert testimony. 3
Defendant argues that the Court should deny $600.50 of
Grant's requested costs because they are duplicative. Dkt. No.
107, p. 3. Specifically, Defendant argues that on November 25,
2013, Grant voluntarily dismissed without prejudice her initial
lawsuit. See Dkt. No. 110. Defendant maintains that Grant, by
requesting costs of $600.50, "seeks duplicative costs for the
two lawsuits that she filed (i.e. service, copying, and postage
costs)." Dkt. No. 107, p. 3. Pursuant to Local Rule 54.1, "[a]
bill of costs must be filed by the prevailing party within
thirty (30) days after the entry of the judgment or other final
order from which an appeal may be taken." LR 54.1, SDGa. A
voluntary dismissal without prejudice is neither an adjudication
The court notes that the parties did not dispute the $12.10 added to the
statutory reimbursement of $40. The addition represents reimbursement for
Dr. Roybal's travel. Such an amount is appropriate and due to be taxed as
costs.
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on the merits nor a final order. See Druhan v. Am. Nut. Life,
166 F.3d 1324, 1325 n.4 (11th Cir. 1999) (emphasis in original)
(explaining that "voluntary dismissals without prejudice
are not 'final' decisions for the purposes of appellate
jurisdiction.")
Upon a careful review of the itemized statement of all
costs, see dkt. no. 106-1, the Court concludes that Grant is not
entitled to recover any costs associated with her initial case—
the case that she voluntarily dismissed. Grant's request for
fees associated with her initial lawsuit fails for two reasons:
(1) Grant is not entitled to recover costs for a case that she
voluntarily dismissed because such an action did not constitute
a final order; and (2) the time to request such fees has longsince passed. Grant's total award is thus reduced by $600.50,
the amount representing those costs associated with the initial
lawsuit.
CONCLUSION

For the reasons set forth above, Plaintiff is precluded
from recovering costs in the amount of $1,600.50.

Accordingly,

Grant's Bill of Costs (Dkt. Nos. 106, 109) is GRANTED in part.
The Clerk of Court is thus AUTHORIZED and DIRECTED to tax costs
against Defendant in the total amount of $4,262.43.

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SO ORDERED,

this 23 day of May, 2016.

q

~

LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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